EventMonitor, Inc. v. Leness

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SJC-11920
EVENTMONITOR, INC. vs. ANTHONY LENESS.1
Suffolk. November 3, 2015. - February 4, 2016.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk,
JJ.
Employment, Termination. Contract, Employment, Performance and
breach, Termination, Indemnity. Indemnity. Massachusetts
Wage Act. Damages, Employment contract.
Civil action commenced in the Superior Court Department on
April 30, 2008.
The case was heard by Jeffrey A. Locke, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Ronald W. Dunbar, Jr. (Andrew E. Goloboy with him) for the
plaintiff.
Shana I. Kaplan (James E. O'Connell, Jr., with her) for the
defendant.
David J. Fried, for Massachusetts Employment Lawyers
Association, amicus curiae, submitted a brief.
1
Before trial, Anthony Leness voluntarily dismissed all
claims against third-party defendant Sheldon Chang, who plays no
role in this appeal.
2
DUFFLY, J. The plaintiff, EventMonitor, Inc.
(EventMonitor), is a Delaware corporation, established in 2000,
with headquarters in Boston. It develops and markets software
for the financial industry. The defendant, Anthony Leness, was
one of the early employees of the company. Leness was hired as
EventMonitor's vice-president for business affairs in June,
2001, upon his graduation from Harvard Business School. He
served in that position for approximately six years, until he
was terminated on December 5, 2007, two months after he had
proposed a plan to restructure EventMonitor into two related
entities, a proposal that Sheldon Chang, EventMonitor's
president and executive director, believed would undermine the
future of the company. The termination was characterized as
"without cause."
Under the terms of Leness's employment contract,
EventMonitor therefore was required to pay him one year's salary
and benefits, plus the value of any accrued but unused vacation
time. Section 6(b) of the employment agreement provided that,
upon termination, Leness was to return "all items containing or
embodying Proprietary Information (including all copies)."
Before his departure, Leness returned, among other things, a
company laptop computer containing proprietary information that
he had used in the course of his work at EventMonitor.
3
Soon after Leness's termination, through a forensic
examination of the laptop computer, EventMonitor discovered that
Leness had copied all of the data on the computer, including
EventMonitor's customer information and proprietary business
plans, to a data backup and storage service accessed over the
Internet. Leness had not informed EventMonitor about this
backup before his termination was effective. To the contrary,
Leness had paid the subscription for the data storage service
with a personal credit card, and also had installed a "cleaning"
program in an effort (ultimately unsuccessful) to delete from
the laptop information related to the account subscription.
EventMonitor deemed Leness's actions to have been a defalcation
of company assets. "Defalcation" was one of the only reasons in
the employment contract that would have allowed EventMonitor to
terminate Leness "for cause." And, where a termination was for
cause, the contract did not require Eventmonitor to make any
severance payments.
Retroactively characterizing the termination as having been
for cause, in mid-February, 2008, approximately five weeks after
Leness's departure, Eventmonitor stopped paying Leness any
severance payments, declined to pay him his accrued vacation,
and filed a complaint in the Superior Court asserting, among
other claims, breach of contract. Leness asserted twelve
4
counterclaims, among them breach of contract; breach of the
implied covenant of good faith and fair dealing; violations of
the Massachusetts Wage Act, G. L. c. 149, § 148 (wage act); and
indemnification under the terms of the employment contract.2
Leness argued that EventMonitor had no valid basis for treating
his termination as one "for cause," and had committed a breach
of the contract by refusing to pay his severance payments, as
well as violated the wage act by refusing to pay him the value
of his accrued and unused vacation.
After a jury-waived trial, a Superior Court judge found
that Leness had not engaged in defalcation of EventMonitor's
assets, and had not committed a material breach of the
employment contract, and thus that his termination could not
have been for cause. Judgment entered for Leness on
EventMonitor's claims for breach of contract, breach of the
covenant of good faith and fair dealing, and breach of fiduciary
duty. The judge also entered judgment for Leness on his
counterclaims for breach of contract, breach of the covenant of
2
EventMonitor, Inc. (EventMonitor), also filed claims for,
inter alia, misrepresentation, declaratory judgment, unjust
enrichment, and negligence. Leness also filed counterclaims
alleging breach of fiduciary duty, self-dealing, intentional
interference with advantageous relations, conflict of interest,
defamation, a derivative shareholder claim, and a demand for
access to company books and records. Prior to trial, the
parties dismissed all but the four claims and corresponding
counterclaims at issue on appeal.
5
good faith and fair dealing, and violations of the wage act, but
entered judgment for EventMonitor on Leness's claim for
indemnification. EventMonitor appealed, and Leness cross-
appealed. We transferred the matter to this court on our own
motion.
EventMonitor contends that the judge erred in finding that
Leness did not commit a material breach of the employment
contract and did not engage in a defalcation of company assets.
In support of its assertion that Leness's employment properly
was terminated for cause, EventMonitor asks that we adopt the
"after-acquired evidence doctrine" used in some other
jurisdictions, which allows an employer to recharacterize the
nature of an employee's termination on the basis of information
learned after the termination has taken place.
In the rare opportunities that this court and the Appeals
Court have had to consider the issue of after-acquired evidence
in the context of a termination from employment, neither of the
courts has adopted, or declined to adopt, this doctrine. See
Flesner v. Technical Communications Corp., 410 Mass. 805, 815-
817 (1991); Prozinski v. Northeast Real Estate Servs., 59 Mass.
App. Ct. 599, 610-612 (2004). We need not reach the question
here, because we agree with the trial judge that Leness did not
commit a material breach of the employment contract, and did not
6
engage in defalcation of company assets. Therefore, Leness
committed no act giving rise to a termination for cause, and the
after-acquired evidence doctrine would have had no impact on the
result we reach. We affirm the judge's conclusion that Leness
is entitled to severance payments under the terms of the
contract, and remand the matter for entry of an amended judgment
correcting certain arithmetic errors in the calculation of
accrued vacation payments.3
1. Facts. "We recite the essential facts found by the
judge, which we accept 'unless they are clearly erroneous,'
. . . and which the parties do not challenge, supplemented by
other undisputed information from the record." Boyle v. Zurich
American Ins. Co., 472 Mass. 649, 651 (2015), quoting Weiler v.
PortfolioScope, Inc., 469 Mass. 75, 81 (2014).
In June, 2001, EventMonitor hired Leness as vice-president
for business affairs. Leness and EventMonitor entered into a
written employment agreement detailing how EventMonitor could
terminate Leness with or without cause. Termination without
cause required thirty days' written notice; it also entitled
Leness to severance payments consisting of twelve months of
salary and benefits, unless he began full-time employment during
3
We acknowledge the amicus brief submitted by the
Massachusetts Employment Lawyers Association on behalf of
Anthony Leness.
7
that period, and his accrued but unused vacation time.
Section 5 of the contract specified a very limited number of
reasons that EventMonitor could terminate Leness's employment
for cause, including if Leness "engaged in wilful fraud or
defalcation, either of which involved funds or other assets of
[EventMonitor]."
Section 6(b) of the employment agreement, the non-
disclosure provision, required Leness to "hold in confidence and
not knowingly disclose or, except within the scope of his
employment, knowingly use any Proprietary Information."
"Proprietary Information" was defined as:
"[A]ll [i]nventions and all other business, technical
and financial information (including without limitation,
the identity of and information relating to customers,
investors, vendors, business partners or employees of
[EventMonitor]) . . . that relate to [EventMonitor] or the
business or demonstrably anticipated business of
[EventMonitor] or that are received by or for
[EventMonitor] in confidence."
The section provided further that, upon termination of his
employment, Leness was required "promptly [to] return to
[EventMonitor] all items containing or embodying Proprietary
Information (including all copies)."
Leness worked at EventMonitor for approximately six years.
In the early years, the company grew substantially in terms of
revenue and number of employees. In the fall of 2007, however,
8
tensions developed between Leness and Chang over the direction
of the company. Those tensions escalated significantly after
October 17, 2007, when Leness submitted a business proposal that
would have left Chang to focus on research and development,
using the existing software as a base product, and would have
created a spin-off company for sales and support, with Leness in
charge of that new entity. The new entity would have taken the
majority of EventMonitor's revenue, which was derived largely
from service and licensing agreements with three large clients;
in exchange, the new entity would have lent EventMonitor startup
funds to develop several new products that were then being
considered.
Chang initially agreed to Leness's suggestion that a new
business plan be considered. After seeing the proposal,
however, Chang believed that the plan was developed to further
Leness's self-interest, and the proposal demonstrated that he
was not loyal to the company. Consequently, in December, 2007,
EventMonitor notified Leness of his termination. On December 5,
2007, Chang informed Leness verbally that his employment was
terminated "without cause," and sent him a copy of a written
termination letter, via electronic mail, stating that
EventMonitor was giving thirty days' notice. As required by the
employment contract, prior to the effective date of his
9
termination, Leness provided EventMonitor with information about
client accounts and agreements, as well as a written explanation
of the locations on the company computers where he had stored
proprietary information.
After Leness's departure, Chang hired a forensic expert to
examine Leness's work-issued laptop computer. The examination
revealed that in early October, 2007, at approximately the same
time that he submitted the proposal for restructuring
EventMonitor, Leness paid for a one-year subscription to an on-
line data storage service through a company called Carbonite.
Carbonite is a professional data storage service that encrypts
information for purposes of security. Using this subscription,
Leness copied all of EventMonitor's files that had been on his
laptop to Carbonite's data storage system. The uploaded data
included EventMonitor's "proprietary information," as defined by
the contract, including information related to its customers,
business documents, and financing. Leness did not tell anyone
at EventMonitor about the Carbonite account or the copying of
EventMonitor's proprietary information to Carbonite's storage
system.4 Indeed, Leness used his personal electronic mail
4
The judge found that Leness otherwise had "cooperated"
with EventMonitor in his transition from the company, and had
returned all company equipment, including a "complete set of his
company files and data."
10
address, and his personal credit card, to pay for the Carbonite
subscription. Leness also downloaded a computer cleaning
program to the company laptop in an effort to erase evidence of
the Carbonite account from the laptop.
When Chang learned of Leness's actions in copying
EventMonitor's proprietary information to the Carbonite system,
he retroactively changed Leness's termination to one "for
cause." As a result, in early February, 2008, EventMonitor
stopped making the severance payments required under the
contract for a termination "without cause." EventMonitor also
refused to pay Leness for his unused vacation time, which, under
the terms of the contract, it was required to pay regardless of
the type of termination. Ultimately, Leness informed
EventMonitor that he would file a claim in the Superior Court if
his severance payments were not resumed by May 1, 2008. On
April 30, 2008, without having made any further payments,
EventMonitor commenced this action.
2. Material breach of the employment agreement.
EventMonitor argues that Leness committed a material breach of
the employment agreement by violating section 6(b), which
required him to maintain the confidentiality of EventMonitor's
proprietary information and to return all such information,
including all copies, upon termination.
11
A breach of a contract is a material breach when it
involves "an essential and inducing feature of the contract."
Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 470
(1991), quoting Bucholz v. Green Bros., 272 Mass. 49, 52 (1930),
S.C., 290 Mass. 350 (1935). Whether a party has committed a
material breach ordinarily is a question of fact. See Cetrone
v. Paul Livoli, Inc., 337 Mass. 607, 610 (1958); Coviello v.
Richardson, 76 Mass. App. Ct. 603, 609 (2010); Prozinski v.
Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. at 609.
See also 23 Williston on Contracts § 63:3 at 440 (4th ed. 2002).
But if "the evidence on the point is either undisputed or
sufficiently lopsided . . . the court must intervene and address
what is ordinarily a factual question as a question of law."
See Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 11 (1st
Cir. 2006), quoting Gibson v. Cranston, 37 F.3d 731, 736 (1st
Cir. 1994).
Thus, we accept a trial judge's findings as to the
materiality of a breach unless they are clearly erroneous.
Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). "We
are not bound, however, by the judge's conclusions of law, and
we must ensure that the judge's ultimate findings and
conclusions are consistent with relevant legal standards."
Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510
12
(1996). See Psy-Ed Corp. v. Klein, 459 Mass. 697, 710 (2011),
quoting Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992) ("In
reviewing a judge's decision after a jury-waived trial,
'we . . . scrutinize without deference the legal standard which
the judge applied to the facts'"). "If a judge's ultimate
findings are inconsistent with the subsidiary findings, we must
set them aside." Demoulas v. Demoulas Super Mkts., Inc., supra.
Here, the evidence fully supports the judge's findings, and
there is no error in his determination, based on these findings,
that Leness did not commit a material breach of the employment
contract.
The judge found that in copying EventMonitor's proprietary
information to Carbonite's data storage system, not disclosing
the upload to EventMonitor, and not returning the Carbonite
files upon his termination from employment, Leness violated
section 6(n) of the employment contract, in particular because
he did not return all copies of EventMonitor's proprietary
information. Nonetheless, as the judge correctly concluded,
Leness's failure to return the information, while a "variance
from complete compliance" with the employment contract, did not
affect an essential and inducing feature of the contract, and
therefore was not a material breach.
The judge found that there was no evidence that Leness had
13
used the information for any purpose, before or after his
termination more than five years prior to the date of trial, or
intentionally had disclosed it to anyone. The judge stated
further that, while he did not credit Leness's stated reasons
for having placed a copy of EventMonitor's proprietary
information on the Carbonite system (EventMonitor's purportedly
inadequate backup procedures), he also rejected EventMonitor's
suggestion that the copying had been done with a malicious
intent. Indeed, the judge stated that, given the circumstances
and the state of the relationship between Leness and Chang in
October, 2007, when the copies were made, Leness might well have
wanted the copy in order to be able to demonstrate that he had
not neglected his duties or acted deliberately to the detriment
of EventMonitor's interests.
The judge concluded that the essential purpose of
section 6(b) is to protect the confidentiality of EventMonitor's
proprietary information. A breach of section 6(b) therefore
becomes material if it undermines that confidentiality. Because
there was no evidence or indication that Leness had disclosed
EventMonitor's confidential information, Leness's breach was not
material.
We observe that, while electronic copies of proprietary
information placed on third-party storage devices potentially
14
could fall into the hands of competitors, or otherwise become
public or be disclosed, as the judge found, there was no showing
that such a result was likely to have, or had, occurred.
Carbonite maintains its clients' information in a secure and
encrypted manner, and its business model relies on its clients'
confidence in this assurance. EventMonitor did not suggest, let
alone offer evidence to prove, that its information could more
readily be compromised because it temporarily had been stored on
Carbonite's servers. Indeed, EventMonitor used similar data
backup services, indicating that it did not view the use of such
services as endangering the confidentiality of the information
stored thereon.5
In any event, the possibility of unintentional disclosure
is not relevant under the terms of the employment contract. As
the judge found, Leness did not "knowingly disclose" or
"knowingly use" any of EventMonitor's proprietary information.
Accordingly, because Leness's breach did not endanger the
confidentiality of EventMonitor's information, the breach was
not material, and EventMonitor was not entitled to stop making
severance payments. See Anthony's Pier Four, Inc. v. HBC
5
We hasten to add that we make no determination regarding
the level of security provided by Carbonite's systems, or the
degree of risk that information a client stored there
inadvertently might be disclosed to, or obtained by, a third
party.
15
Assocs., 411 Mass. at 470; Lease-It, Inc. v. Massachusetts Port
Auth., 33 Mass. App. Ct. 391, 396 (1992); 23 Williston on
Contracts § 63:3 at 438.
3. Whether termination could be amended to one "for
cause." Having concluded that Leness did not commit a material
breach of the employment contract, we turn to EventMonitor's
argument that Leness's breach nonetheless provided adequate
grounds for EventMonitor to have converted the termination to
one for cause. To support its decision to change the
termination to one "for cause," EventMonitor asks that we adopt
the after-acquired evidence doctrine that has been accepted in
some other jurisdictions. This doctrine allows an employer
retroactively to characterize a termination as one for cause if
the employer shows that: (1) an employee had committed
misconduct; (2) the employer learned of the misconduct only
after the employee's termination from employment; and (3) had
the employer known of the misconduct prior to the termination
without cause, the employer instead would have discharged the
employee for cause on that basis of that conduct.6 See McDill v.
Environamics Corp., 144 N.H. 635, 640-641 (2000) (citation
6
The United States Supreme Court has prohibited application
of the after-acquired evidence doctrine when a termination
without cause has been found to have occurred for impermissible
reasons, such as discrimination or retaliation. See McKennon v.
Nashville Banner Pub. Co., 513 U.S. 352, 359-360 (1995).
16
omitted). As noted, supra, we need not address this argument,
as we conclude that the information about Leness's activities
about which EventMonitor learned subsequent to his termination
without cause would not have supported a decision to terminate
him for cause.
Under the terms of Leness's employment agreement,
defalcation of company assets permitted a "termination for
cause."7 EventMonitor argues that Leness's actions in uploading
EventMonitor's proprietary information to the Carbonite data
storage system constituted a defalcation of company assets, and
that the judge erred in concluding that there was no
defalcation.
The interpretation of the meaning of a term in a contract
is a question of law, Eigerman v. Putnam Invs., Inc., 450 Mass.
281, 287 (2007), and thus we review the judge's determination de
novo. Trace Constr., Inc. v. Dana Barros Sports Complex, LLC,
459 Mass. 346, 351 (2011). "When the words of a contract are
clear they alone determine the meaning of the contract . . . ."
Merrimack Valley Nat'l Bank v. Baird, 372 Mass. 721, 723 (1977).
7
The contract provided that Leness could be terminated for
cause for "wilful fraud or defalcation." Leness argues that he
could only be terminated for cause under this provision if a
defalcation was wilful. The judge was not required to, and did
not make, a finding as to willfulness, however, because he found
that Leness had not engaged in any defalcation.
17
A reviewing court considers extrinsic evidence only when a term
in a contract is ambiguous. See Massachusetts Mun. Wholesale
Elec. Co. v. Danvers, 411 Mass. 39, 48 (1991).
Relying in part on a detailed examination of Massachusetts
appellate decisions,8 and the common meaning of the term "asset,"
the judge determined that "defalcation" within the meaning of
the employment agreement did not include takings of nonmonetary
assets. The judge concluded also that, even if intangible
assets had been subject to defalcation within the meaning of the
contract, Leness's actions in uploading information to Carbonite
did not deprive EventMonitor of the use or value of those
assets, and that there was no evidence that he had disclosed,
had intended to disclose, or had made use of the information for
his own benefit or to the detriment of EventMonitor.
We agree that there was no defalcation here. Regardless of
whether defalcation under Massachusetts law is limited solely to
the taking of funds, in ordinary usage defalcation requires at
least a temporary misuse or deprivation of the use or value of
an asset,9 and the employment agreement does not otherwise define
8
Although EventMonitor is a Delaware corporation, its
officers are in Boston, and the employment agreement specified
that it was to be interpreted in accordance with Massachusetts
law.
9
See Black's Law Dictionary 506 (10th ed. 2014) (defining
18
the term.
The judge found, and the finding is supported by the
evidence, that Leness did not misuse or deprive EventMonitor of
its proprietary information. Leness merely retained a copy of
the information under circumstances that had no impact on
EventMonitor's use of its proprietary information, or on the
value of that information. If Leness had disclosed or used the
information, his actions might have allowed a competitor to
offer a similar product without substantial development costs,
reduced the standing of the company in the eyes of its clients,
or provided a competitor with information about EventMonitor's
customers, any one of which possibly could have resulted in a
defalcation as "fraudulent misappropriation of money held in
trust; financial wrongdoing involving a breach of trust;
embezzlement"); The American Heritage Dictionary of the English
Language 488 (3rd ed. 1992) (defining "defalcate" as to "misuse
funds; embezzle").
Although no Massachusetts case has defined the term
"defalcation" explicitly, where the term appears, it is used in
accordance with its ordinary and plain meaning, that is, a
misuse or deprivation of the use of an asset held in trust.
See, e.g., Indeck v. Clients' Sec. Bd., 450 Mass. 379, 380-381
(2008) ("defalcation" describes conduct of attorney who
misappropriated client funds entrusted for investment); Buster
v. George W. Moore, Inc., 438 Mass. 635, 652 (2003)
("defalcation" used to describe act of misappropriating
entrusted property, depriving property owner of its use); Matter
of Driscoll, 410 Mass. 695, 704 (1991) (Greaney, J., dissenting)
("defalcation" used to describe conduct of attorney who used
client funds to pay personal debts); Mickelson v. Barnet, 390
Mass. 786, 790 (1984) ("defalcation" used to describe
accountant's embezzlement of investors' funds).
19
loss of revenue. Such loss did not occur here. We need not
decide whether actions that result in a loss of the exclusive
use of proprietary information could have amounted to a
"defalcation" within the meaning of the contract, because
Leness's secure storage of a copy of the proprietary
information, in the absence of any disclosure or use by anyone
other than EventMonitor, did not undermine EventMonitor's
exclusive use of its information.
4. Indemnification. Leness argues that the judge erred in
concluding that EventMonitor was not required to indemnify him
for his costs incurred in defending against EventMonitor's
claims. Leness's argument that he is entitled to
indemnification is not supported by the plain language of the
contract. The employment agreement's indemnity clause,
section 10(h), states that EventMonitor must indemnify Leness if
he
"is made a party . . . to any . . . action, suit or
proceeding . . . by reason of the fact that [Leness] is or
was an employee, officer or director of [EventMonitor]
. . . in which capacity [Leness] is or was serving at
[EventMonitor's] request."
Thus, under its plain language, the clause requires
indemnification only if a claim is brought against Leness as a
result of actions in his capacity as an employee, acting at
EventMonitor's request. Here, Leness was made a party to an
20
action only after EventMonitor discovered that he had uploaded
its proprietary information to a third-party data storage
service. As the trial judge found, the filing of the lawsuit
was a direct result of Leness's actions with respect to the
Carbonite data storage subscription, undertaken in his personal
capacity and not in his capacity as EventMonitor's employee.
These findings are well supported in the record and are not
clearly erroneous. Leness's conduct in purchasing the
subscription using a personal credit card and personal
electronic mail account, uploading the information without
advising anyone at EventMonitor of his actions or his purported
reason for doing so (EventMonitor's supposedly inadequate backup
procedures),10 and then attempting to erase all traces of the
Carbonite subscription from his computer, supports the inference
that use of the Carbonite data storage service was undertaken in
Leness's personal capacity, rather than as an employee. Leness
also committed a breach of the employment contract by not
returning or deleting the copy of EventMonitor's proprietary
information stored on the Carbonite system before his employment
ended. EventMonitor was not required to indemnify Leness for
10
As noted, the judge rejected as not credible Leness's
explanation that he used Carbonite because he was worried about
the stability of EventMonitor's internal backup procedures, but
concluded that the copying was not with malicious intent.
21
defending against a lawsuit resulting from actions that were not
undertaken in his capacity as an employee.
5. Calculation of damages for violations of the wage act.
General Laws c. 149, § 148, requires timely payment of wages,
including payments due under the terms of an agreement for
accrued but unused vacation time. The judge determined that
Leness was entitled to payment for 8.4 days of accrued and
unused vacation.11 Neither party disputes the judge's
calculation of the number of days at issue. In his brief,
however, Leness contends that the judge's calculation of damages
for those days, in the amount of $4,732.10, trebled to
$14,196.30 (as required by G. L. c. 149, § 150), is erroneous
due to a mathematical error. We agree that based on a daily
rate of $673.08, the damages for 8.4 days of accrued vacation
pay should have been $5,653.87, trebled to $16,961.62.12
11
The contract entitled Leness to fifteen vacation days per
year, and to accrue unused vacation days.
12
The judge stated that he derived the amount of damages by
multiplying Leness's daily rate by 8.4 days, then trebling that
amount. The result he reached in the initial multiplication
($4,732.10), however, is mathematically incorrect. Dividing
Leness's weekly rate of $3,365.38 by five results in a daily
rate of $673.08. Thus, the damages for 8.4 days at a rate of
$673.08 per day should have been $5,653.87. That the judge
calculated a daily rate based on a five-day work week is evident
from his finding that, in addition to his annual salary, Leness
was entitled to severance pay of $10,096.15 for fifteen days of
vacation benefits ($10,096.15 divided by fifteen equals
22
According to the Superior Court docket sheet, although, in
2012, Leness's motion pursuant to Mass. R. Civ. P. 59 (e), 365
Mass. 827 (1974), to amend the judgment in order to add costs
was allowed, Leness has not filed in the Superior Court a motion
for relief from judgment for a clerical mistake, pursuant to
Mass. R. Civ. P. 60 (a), 365 Mass. 828 (1974) or mistake or
inadvertence pursuant to Mass. R. Civ. P. 60 (b). Nonetheless,
modification of a judgment to correct an inadvertent error of
this type, in a mathematical calculation, is appropriately
raised on appeal. See Massachusetts Mun. Wholesale Elec. Co. v.
Springfield, 49 Mass. App. Ct. 108, 113-114 (2000). Leness is
entitled to entry of an amended judgment to correct the
mathematical miscalculation.
6. Conclusion. The judgment is affirmed as to all claims
and counterclaims other than the amount of damages awarded to
the plaintiff-in-counterclaim under G. L. c. 149, § 148, of the
wage act. The matter is remanded to the Superior Court for
entry of an amended award of damages on the wage act claim,
consistent with this opinion.
So ordered.
$673.08).